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Case 4:08-Cv-40054-FDS Document 42 Filed 05/20/08 Page 1 of 21 Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 1 of 21 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _______________________________________ ) COMMERCE BANK & TRUST ) COMPANY, ) ) Plaintiff, ) Civil Action No. ) 08-40054-FDS v. ) ) TD BANKNORTH, INC., TD BANK ) FINANCIAL GROUP, THE TORONTO- ) DOMINION BANK, and COMMERCE ) BANCORP, INC., ) ) Defendants. ) _______________________________________) MEMORANDUM ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION SAYLOR, J. This is an action for trademark infringement. Plaintiff Commerce Bank & Trust Company (“Commerce Bank”) is a bank headquartered in Worcester, Massachusetts. In March 2008, defendants Toronto-Dominion Bank, TD Bank Financial Group, and TD Banknorth, Inc., announced plans to merge TD Banknorth with Commerce Bancorp, Inc. (“Commerce Bancorp”). Defendants have announced that they intend to rename the combined entities “TD Commerce Bank.” Commerce Bank has moved for a preliminary injunction against the defendants’ use of the “Commerce Bank” or “TD Commerce Bank” marks. The Court granted Commerce Bank’s motion in a preliminary injunction order dated May 7, 2008. This memorandum sets forth the basis for that decision. Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 2 of 21 I. Factual Background A. Commerce Bank Commerce Bank is a bank headquartered in Worcester, Massachusetts, with twelve branches located in the central part of the commonwealth.1 It has operated continuously since 1955. It offers a wide variety of banking services to the public, including commercial and consumer loans and mortgages as well as various deposit products and services. It has more than 30,000 current customers; its deposit customers are heavily concentrated in Worcester County, with some number in adjoining Middlesex County. Its assets are approximately $1 billion. Approximately one-third to one-half of Commerce Bank’s business is in commercial lending. It holds interests in nearly 3,000 loans in Massachusetts with a total value approximating $321 million dollars. (Thompson Aff., ¶¶ 2-3). The following represents the outstanding value of its loans, broken down by county of the borrower’s principal place of business or home: Worcester: $175 million; Middlesex: $65.2 million; Suffolk: $29.5 million; Norfolk: $19.3 million; Essex: $16.85 million; Hampshire: $7.23 million; Dukes: $3 million; Plymouth: $1.67 million; Barnstable: $1.218 million.2 Bristol: $824,307; Hampden: $168,014; 1 Specifically, it has four branches in Worcester and branches in Holden, Leominster, Shrewsbury, Marlborough, Milford, Westborough, Webster, and West Boylston, Massachusetts. All but one are in Worcester County; the Marlborough branch is in Middlesex County. 2 Barnstable County data was omitted from the affidavit submitted by plaintiff that provided the county- by-county loan breakdown. On May 7, 2008, the Court accepted plaintiff’s in-court proffer as to the amount for Barnstable County. 2 Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 3 of 21 Berkshire: $114,103; Franklin: $83,122; Nantucket: $2,476; (Id. at ¶ 4). The outstanding value of its loans in other states are as follows: Connecticut, $21.5 million; Rhode Island, $4.16 million; New Hampshire, $3.96 million; and Maine, $2.23 million. Id. at ¶ 5. Commerce Bank has used the “COMMERCE BANK” mark in connection with its banking business in Massachusetts continuously since 1955. In 2002, it received Massachusetts Service Mark Registration No. 62,238 for the “COMMERCE BANK” mark. Commerce Bank uses a logo consisting of a stylized lion’s head in a circle, colored blue and gold followed by the words “Commerce Bank.” Although plaintiff’s formal name is Commerce Bank & Trust, Co., in advertising and marketing plaintiff refers to itself almost exclusively as “Commerce Bank.” Commerce Bank has used the mark on its physical facilities and in advertising and promotion activities throughout central Massachusetts. Since 2000, it has expended approximately $6.3 million on marketing and advertising featuring the mark. Its advertising campaign for the past several years has focused on promoting Commerce Bank employees and their long-standing ties to the communities where bank branches are located. (See Pl. Ex. D). The bank’s website notes that “Commerce Bank will never be one of the ‘Big Banks’ . we don’t change our name (and who knows what else?) every 6 months to reflect the latest mega- merger.” Commerce Bank has also sought to enhance the public profile of its mark through sponsorships of local community activities and programs. In 2007, it donated $1 million to 3 Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 4 of 21 restore the high school sports stadium complex in Worcester. The facility is now called “Commerce Bank Field at Foley Stadium” and prominently displays the “COMMERCE BANK” mark throughout the facility. Commerce Bank also sponsors the Worcester Sharks of the American Hockey League and the Worcester Tornadoes of the Can-Am League, an independent baseball league. B. Merger of Commerce Bancorp and TD Banknorth Commerce Bancorp is a New Jersey bank with more than 470 branches in New Jersey, New York, Connecticut, Pennsylvania, Delaware, the District of Columbia, Maryland, Virginia, and Florida. It has no branches in Massachusetts and is not registered to do business in the commonwealth. It began using the “Commerce Bank” mark in 1973 and received a federal registration for that mark in 2002. The Toronto-Dominion Bank is a Canadian bank with a principal place of business in Toronto, Ontario. TD Bank Financial Group and TD Banknorth are wholly-owned subsidiaries. TD Banknorth is a bank with a principal place of business in Portland, Maine. TD Banknorth has assets of more than $60 billion and has a large commercial and retail presence in New York and New England.3 It has more than 150 branches in Massachusetts and holds $7.5 billion in assets derived from Massachusetts customers. Among other things, TD Banknorth holds the naming rights to the stadium (TD Banknorth Garden) used by the Boston Celtics basketball team and the Boston Bruins hockey team. On March 19, 2008, Commerce Bancorp and TD Banknorth announced publicly that they intended to merge. The parties stated that they planned to operate in all states, including 3 The Toronto-Dominion Bank has assets of more than $422 billion. 4 Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 5 of 21 Massachusetts, as “TD Commerce Bank.” Also on March 19, the Toronto-Dominion Bank filed two federal intent-to-use applications for the trademark registration of “TD Commerce Bank” and “TD COMMERCE BANK.” On March 19, Commerce Bancorp and TD Banknorth issued press releases concerning the merger and took out full-page advertisements in the Boston Globe and the Worcester Telegram & Gazette newspapers. These advertisements stated that “TD Banknorth will soon merge with Commerce Bank and, subject to regulatory approvals, we will soon become known as TD Commerce Bank.” (Thompson Aff. ¶¶ 26-27). The merged entity plans to use a visual mark consisting of a logo with the stylized letters “TD” written in white against a green background in a small box, followed by the words “Commerce Bank.” The spoken representation of the mark is planned to be “TD Commerce Bank.” C. Alleged Confusion of Commerce Bank Customers and Instant Dispute Commerce Bank contends that in the days and weeks after the “TD Commerce Bank” full- page advertisement appeared, it began receiving expressions of confusion from its customers. According to Commerce Bank’s records, customers inquired (1) whether Commerce Bank was being merged into or acquired by TD Banknorth and (2) whether they could begin depositing their paychecks at TD Banknorth branches. (Id. at ¶¶ 35-36; Ex. V). Commerce Bank also received an e-mail on March 2l, 2008, two days after the advertisement ran, from a representative of Easter Seals expressing thanks for the bank’s assistance. This e-mail stated: “Thank you for your kind words Lisa. Through Commerce Bank, or I should say TD Commerce, Easter Seals message and vision continues to grow.” (Thompson Aff., ¶ 37; Ex. W) (emphasis added). Upon learning of the merger, Commerce Bank immediately notified the defendants in 5 Case 4:08-cv-40054-FDS Document 42 Filed 05/20/08 Page 6 of 21 writing of its ownership of the “COMMERCE BANK” mark and requested that the defendants refrain from using the mark in Massachusetts.4 On March 31, 2008, Commerce Bank filed this action. The complaint asserts claims for (1) false designation of origin under Section 43(a) of the Trademark Act of 1946, as amended, 15 U.S.C. § 1125(a) (“the Lanham Act”), (2) trademark infringement in violation of Mass. Gen. Laws ch. 110H, § 12, (3) trademark dilution in violation of Mass. Gen. Laws ch. 110H, § 13, (3) unfair competition, and (4) unfair and deceptive practices in violation of Mass. Gen. Laws ch. 93A §§ 2, 11. Commerce Bank seeks an order requiring the defendants to refrain from using the marks “TD Commerce Bank,” “TD COMMERCE BANK,” “Commerce Bank” or any other similarly confusing mark in connection with banking services in Massachusetts. II. Legal Analysis To obtain a preliminary injunction in a trademark case, a party must show (1) a substantial likelihood of success on the merits, (2) a significant risk of irreparable harm, (3) that the balance of equities is in its favor and (4) that the granting of the injunction will not adversely affect the public interest. See TEC Eng’g Corp. v. Budget Molders Supply, Inc., 82 F.3d 542, 544 (1st Cir. 1996). A. Likelihood of Success on the Merits Plaintiff contends that it is likely to succeed on the merits of its claims of confusion under the Lanham Act and infringement and dilution under Massachusetts law.
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